I have written in defense of death panels. They come in all shapes and sizes. Most of these are necessary and unavoidable.

After all, decisions must be made that will cause or hasten death. There is, for example, far greater demand for human organs than there is supply. One might call these "justified death panels."

On the other hand, it is alarming to watch an ongoing court trial against the very sort of death panel that the Tea Party rhetoric warned about. One might call this an "unjustified death panel."

AseraCare is a for-profit hospice system with 60 hospices in 19 states. In a lawsuit brought by former employees and later joined by the DOJ, AseraCare is charged with falsely telling patients that they were terminally ill. AseraCare allegedly marginalized doctors and systematically pressured its own clinical staff to admit and keep ineligible patients. Why? So, those patients would enroll in hospice and AseraCare could bill Medicare.

But as the Medicare hospice benefit is currently designed (pilot trials are exploring alternatives), when patients choose hospice care, they must forgo Medicare coverage for their terminal illness. In other words, AseraCare caused hundreds of non-terminally ill patients to prematurely give up seeking a cure, so it could bill Medicare for hospice.